Durham City Attorney Says Council Has Obligation to Make Ward 3 Appointment

On Monday morning, Friends of Durham joined the People’s Alliance and the Durham Committee on the Affairs of Black People in calling for the city council to fill the Ward 3 seat vacated by now-state representative Vernetta Alston through a special election this fall rather than through an appointment on May 4.

“Given the gravity of the current health crisis and the effect on municipalities across the country, it is imperative that residents’ and voters’ participatory rights be protected during the selection process of our leadership,” Daniel Jewell, who chairs the PAC’s strategic planning committee, wrote to city officials. “… Friends of Durham urges the Durham City Council to reconsider its decision to use the appointment process and instead allow the residents of the City of Durham a full democratic opportunity to engage in the political process of filling the Ward 3 seat.”

At tonight’s virtual meeting, council member Mark-Anthony Middleton says he will make a motion to halt the in-progress appointment process.

“The charter mandates a selection process that includes an allowance for an election,” he told the INDY last week. “The charter does not prescribe what that process looks like. That is left to us.”

The PA and the Durham Committee have argued that the city charter—last amended by the legislature in 1979—gives the council the ability to hold an election if it wants. They say that the stay-at-home order currently in place won’t allow the council to receive sufficient public input into its appointment.

But council member Charlie Reece has countered that the language of the charter leaves them no option.

The key word in the charter language, Reece says, is shall: “If a vacancy occurs in the office of Council member, the City Council shall … within 60 days of the vacancy, choose some qualified person to fill the place of such Council member for the remainder of the unexpired term. … If the Council fails to choose some qualified person within 60 days after the vacancy occurs, it may not fill the vacancy by appointment, but shall call a special election.”

On Friday afternoon, city attorney Kimberly M. Rehberg weighed in, saying that in her view, the council has no choice but to make a good-faith attempt at an appointment.

“My opinion is that Section 13.2(c) states a requirement that the City Council has 60 days to make an appointment to fill a vacancy on Council,” she wrote in a memo to council members. “Because of the use of the word ‘shall,’ I read this charter provision as making the task of filling a vacancy on Council obligatory, and not merely optional or discretionary.”

The state statutes that talk about vacancies also use the word shall, Rehberg points out. “As such,” she wrote, “I read both the City Charter and the applicable general statute as conveying an expectation that the Council will fill a vacancy by appointment and creating a legal obligation on the part of the City Council to at least attempt to take that action. If a majority cannot agree on an appointee, the charter provides a remedy, in the form of special election, but the statute does not.”

UNC School of Government law professor Frayda Bluestone concurred, Rehberg wrote. (While Bluestone had originally told the INDY last Wednesday that state law gave the council the option to hold an election in November rather than make an appointment, she sent an email correcting herself on Thursday; state law would require the vote to take place during the next municipal election, in 2021.)

The city can ask the General Assembly, which begins its short session next week, to alter the charter provision dealing with vacancies, Rehberg wrote.

“Some have indicated that the City Council should simply forego making and attempting to make an appointment to fill the vacancy, so that the special election provisions of Section 13.2(d) of the City’s Charter apply,” Rehberg continued. “That, too, is something that the City Council could do; however, as previously discussed, the Charter contemplates that the Council will try to make an appointment. Failing to make an appointment within the meaning of the provision could occur because a majority does not agree on an appointee or a qualified candidate cannot be identified for consideration, but the spirit of the provision contemplates that the failure results from lack of consensus, not from declining to engage in the process, which is arguably neglect of the legal obligation to make the appointment.”

The question, then, is what would happen if the council simply ignores that obligation, waits out the 60-day period, and proceeds to an election, Rehberg wrote.

If nobody challenged the council’s inaction, nothing would happen. But if someone sued—perhaps an applicant for the vacancy—a court could order the city to appoint someone to the vacant seat and charge the city costs and fees.

Or a court could decide the appointment language is optional.

“This does not strike me as the most logical interpretation of the language …,” Rehberg wrote. “However, this issue has never been directly considered by a court of law in our state, and, as you know, anything can happen when a question is submitted to the court.”

Middleton, however, says that state law allows for a compromise. If the council cites the state statute instead of the city charter, he argues, it can delay the appointment process for an indeterminate “reasonable” period of time—ideally, until after the worst of the pandemic has passed and the stay-at-home order has lifted.

He originally intended to ask the General Assembly for a local bill to clarify the city’s authority. But then, he says, he discovered it already existed.

“Tonight I will ask to stop the 60-day clock and commit to the statutory standard of reasonable time,” he told the INDY in a Facebook message on Monday afternoon. “I will also personally commit to do my part to find consensus to fill the seat.”

He added: “I am not against a selection process. I've actually participated in one and never raised any objection to it because there was NO WORLDWIDE LIFE-THREATENING PANDEMIC occurring.”

Unless the council reverses course tonight, applications for the vacant seat will be due on Thursday. Applicants must live within Ward 3, which covers the city’s west side.

Contact editor in chief Jeffrey C. Billman at jbillman@indyweek.com.

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